County addresses gravel pit Catch-22

In an effort to solve a Catch-22 problem in the gravel pit permit process, the Flathead County Planning Board forwarded a zoning text amendment to the county commissioners on Wednesday.

The county's Planning and Zoning Office had suggested deleting a sentence in zoning regulations that required the Department of Environmental Quality to approve a gravel pit's plan for development before the Board of Adjustment would grant a conditional use permit.

The DEQ requires that a conditional use permit be granted before approving the plan for development.

In January, the Montana Supreme Court used those conflicting regulations to find that the conditional use permit granted by the Board of Adjustment to Bruce Tutvedt was not lawful.

Justice Patricia O. Cotter, in the opinion of the court, wrote: "…nowhere does [state statute] grant the Board the authority to ignore, alter or nullify duly enacted zoning ordinances. Because the Board's authority is constrained by the statute, unless the statute authorizes the Board to ignore or reinterpret the regulations, it has no power to do so."

Cotter also wrote that it was not up to the court to rewrite the zoning regulations, and that fixing the problem was the obligation of the county.

Rather than deleting the sentence, the Planning Board rewrote the regulations to state that the Board of Adjustment can grant a conditional use permit without state approval, but the applicant must submit to the board the same environmental data required by the state environmental agency.

This removes the Catch-22 but still gives the board enough information to make an informed decision about conditional use permits.

Planning Board member Mike Mower raised the argument that this process requires the applicant to spend a lot more money up front to collect environmental data before knowing if he or she will even be able to use the property for a gravel pit or other extractive activities.

The provision will not require a full environmental assessment.

"You're going to spend more money earlier, but that's the nature of the beast," Mower said.

The Planning Board's recommendation will now go to the commissioners. Another public meeting will take place before a final vote.

Reporter Michael Richeson may be reached at 758-4459 or by e-mail at mricheson@dailyinterlake.com